Contact:

Federal law requires certain facilities that manufacture, process, or use any of 581 toxic chemicals to report annually to the Environmental Protection Agency (EPA) and their state on the amount of those chemicals released into the air, water, or soil. It also requires EPA to make this information available to the public electronically through the Toxics Release Inventory (TRI) database. Facilities must either (1) submit a detailed TRI Form R for each designated chemical that they use in excess of certain thresholds or (2) file a simpler Form A certifying that they need not do so. To reduce companies' burden, EPA issued a rule in December 2006 intended to expand Form A eligibility for certain facilities and chemicals. GAO was asked to analyze (1) how EPA and others use TRI data, (2) whether EPA followed internal guidelines in developing its rule, (3) the rule's impact on information available to the public, and (4) the extent of burden reduction that is likely to result from EPA's changes.

TRI data are used widely by nearly all EPA program offices in carrying out their missions, and by other federal agencies, the states, and the public at large. The Internal Revenue Service, for example, uses the data to identify companies that release chlorofluorocarbons (chemicals that deplete the earth's ozone layer) to enforce a tax to help phase out their use. States use TRI data, among other things, to design pollution prevention initiatives, to calculate fees on emitting facilities, and to assist in emergency planning. Key users among the public include researchers, who use TRI data to assess environmental policies and strategies for pollution reduction, and individual citizens and local advocacy groups, who use it to learn about the type and quantity of toxic chemicals released in their communities. EPA did not follow key steps in agency guidelines designed to ensure that it conducts appropriate scientific, economic, and policy analyses and receives adequate input from relevant program offices before finalizing a major rule. This occurred, in part, because EPA expedited the rule-making process in an effort to meet a commitment to the Office of Management & Budget (OMB) to provide burden reduction by the end of 2006. The schedule did not allow it to meet the guideline's provisions to complete economic analyses; evaluate the costs and benefits of the changes; or seek adequate input from EPA program offices that rely heavily on TRI data. For example, although EPA held a Final Agency Review for program offices to state their position on the proposed rule, the review package did not include the burden reduction option, and supporting analysis, that was proposed and adopted. GAO concluded that, while EPA estimated that its rule would affect reporting on less than 1 percent of the total release pounds nationwide, this aggregate national estimate masked the disproportionately large impact the rule would have on individual communities across the country. GAO's analysis indicated that EPA would allow more than 3,500 facilities to no longer report detailed information about their toxic chemical releases and waste management practices. As a result, more than 22,000 of the nearly 90,000 TRI reports could no longer be available to hundreds of communities in states throughout the country. In addition, many commenters including the attorneys general of 12 states and EPA's Science Advisory Board stated that the changes will significantly reduce the amount of useful TRI information. EPA's estimated savings from the reduced reporting burden associated with the TRI rule--3 percent of total annual burden hours, worth about $6 million annually--are likely overstated. EPA's projected savings are based on OMB-approved estimates of burden hours associated with completing Form R and Form A, but these estimates are based on outdated data. EPA's more recent engineering estimates--developed from a systematic examination of the amount of time needed to collect and report the data on Form R and Form A--suggest a lower overall burden associated with current TRI reporting and, consequently, 25 percent lower burden savings from the new rule.

Matter for Congressional Consideration

Status: Closed - Implemented

Comments: On December 18, 2006, EPA issued the Toxics Release Inventory (TRI) Burden Reduction Final Rule that reduced the amount of information reported to the public about chemical releases that had previously been required from facilities manufacturing, processing, or using toxic chemicals. GAO evaluated EPA's TRI rulemaking process and the agency's regulatory impact analysis. We subsequently testified that EPA did not appropriately follow its rulemaking process, underestimated the impact of the rule's changes, and overestimated the cost savings to chemical facilities (GAO-07-464T, GAO-08-115T). In November 2007, after EPA disagreed with GAO's draft recommendation that the agency reanalyze the costs and benefits of the TRI rule, GAO reported that Congress may wish to consider enacting legislation, including bills already introduced that cited our analysis, that would reverse EPA's rulemaking (GAO-08-128). Based in large part upon our work, the Congress considered and enacted legislation to roll back EPA's changes to the TRI reporting requirements. On March 11, 2009, the Omnibus Appropriations Act of 2009 nullified EPA's changes to the TRI, and the EPA Administrator issued a final rule reinstating the previous toxic chemical reporting requirements on April 27, 2009.

Matter: Because EPA did not agree to our recommendation that it sufficiently analyze the costs and benefits of increased use of TRI Form A, Congress may wish to consider taking appropriate actions to address concerns about reduced environmental information available to many communities. Specifically, unless EPA provides the Congress with such an analysis within 30 days of the public release of this report, the Congress may wish to consider enacting legislation, including bills already introduced, that would reverse EPA's expansion of TRI Form A eligibility for certain facilities and chemicals.